Shhhhh! Talking Politics at Work Is Bad for Business

According to a recent survey conducted by the Society of Human Resource Management (SHRM), in this election year 26% of employers surveyed believed there was greater political volatility in the workplace, including increased tension and hostility or arguments among co-workers due to political affiliation. With this increase in political volatility also comes damaged work relationships and decreased productivity.

Some ways employers discourage political activity and discussions in the workplace include prohibiting:

Campaigning during work hours or on workplace premises;

Political discussions that are disruptive to work or co-workers;

The display of campaign paraphernalia, posters, t-shirts and buttons in the workplace; and

The use of the employer’s property (computers, email, copiers or letterhead) in support of a political party or candidate.

What about the employee who protests that the employer is violating his or her constitutional right to free speech when it enforces a political activity policy? Well, it may come as a surprise to many employees in the private sector that they only have limited First Amendment rights in the workplace.

In crafting fair restrictions in a political activity policy, an employer should weigh its employees’ (limited) right to free speech against the employer’s legitimate business reasons for restricting employee speech. Any limits placed on speech should be necessary to protect the legitimate interests of the employer, such as employee productivity or public image.

Employers in the private sector must also be aware that some state laws explicitly protect an employee’s political activities, prohibiting an employer from disciplining or discharging an employee unless the employee’s political activity interferes with his or her work. For example, under California state law an employer may not implement policies forbidding or preventing employees from engaging in politics and may not control – or attempt to control – the political activities or affiliations of employees.

There is a difference for employees in the public sector. Those employees, including employees that work for governmental entities, have greater First Amendment speech protections – unless statements are made in relation to the individual’s duties as an employee rather than as a private citizen. However, even public employees’ free speech rights can be limited.

For example, officials in Baltimore County, Maryland recently warned county employees that they plan to enforce a long-standing policy against “brutal or offensive” behavior in the workplace and on private time, including on social media. According to a recent report, county officials pointed to the “increasing coarseness of online behavior, particularly about the presidential election” as one reason for the renewed effort to enforce the county’s policy.

But Don’t Prohibit Concerted Activity

When formulating a policy to curb political activity, an employer also must be aware of limitations imposed by the National Labor Relations Act (NLRA). The NLRA forbids work rules that prohibit employees from engaging in protected concerted activity or that can be reasonably construed as attempting to prohibit protected concerted activity. Thus, an employer cannot use a political activity policy to discipline employees who participate in political advocacy and conduct aimed at making the employer aware of issues related to wages, hours or working conditions or that have a direct relationship to an employee’s working conditions.

It is also important to note that although the First Amendment does not bar an employer from implementing a dress code policy that prohibits employees from wearing political shirts, buttons and other political items at work, the NLRA protects an employee’s right to display labor insignia. For instance, if a union employee wears a button that says “Teamsters for Trump!” (unlikely, I know), an employer should think twice about enforcing the dress code policy, in deference to the NLRA’s protections.

What Happens When CEO’s Talk

When an employer chooses to limit political activity in the workplace, those limits should apply to everyone – including those at the top. In fact, if an employer only selectively enforces a prohibition on political activity the policy not only loses its enforceability, but it also opens the employer up to potential discrimination claims. As a result, political activity policies must apply to everyone, and everyone must comply.

What happens when a CEO talks politics at work? According to recent study published by the Social Science Research Network, an employee’s political choices can be dramatically influenced by his or her employer. One finding – employees donate almost three times more money to CEO-supported political candidates than they do to candidates not supported by their CEO, and employees will actually change their donation patterns if the CEO changes his or her pattern.

So why do some people still discuss politics at work? I don’t know. In fact, I am a little nervous just talking about it.

Do you have a story to share about a political discussion at work that made you uncomfortable? Let us know by leaving a comment below.

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